On nothing

Its not easy going back to writing a piece, specially after a life changing event. This will be my first one to do so after quite a while. For three months, I remained almost an oblivion to many. I avoided social events, even meeting with friends and just remained in my quiet world. Writing even a short email for work seemed to be struggle.

Lately though there has been a personal urge on my part to begin writing again my thoughts.

But what do I write about? Not another piece on the law. Done that. Heck, i did a full thesis on the law and was eventually conferred honors for that a few months ago.

So what do I write about ? Lately, I have been preoccupied writing short poetry for my treasures in life. Poetry that is not meant to be shared, lest I be subjected to unknown critics' unsavory remarks. Its meant only for my treasures' eyes only.

I have no pretensions of having the facility or the lyrical adepth to writing. I write only because I want to. But still that doesn't answer the question I posed earlier.

This question festered me a week ago while I was on my way to the mountains of the north.

A week ago, I was back in my mountain after four years of just dreaming of her. There, I admired once more the beauty of my mountain, surrounded in bliss by the simplicity of life. In my mountain, a gentle breeze envelops your total being. There you can feel our God in all His wonder and might. There you can be one with our God and commune in silence with Him, where only the noise of total silence will bother you.

In my mountain, people live without the trimmings and so-called necessities in the concrete jungle. They live in sublime peace and blessedness, something we urban beasts will never fully know and understand.

I tried my best to breathe in every air I spent in my mountain. I filled my lungs to the brim, savoring every moment of it. But no voice came to me while I was there. There was only silence. Only the gentle hush of a mild wind breezing through will flowers and trees shatters the piece.

Now that I am back in the concrete jungle. Still the question fester me... what do I write about?

I know. Nothing.

Why not a piece on nothing. What is nothing. A total absence, uneventfull, insignificant.It is said to be the contrast of something and everything. So what is something and everything.

Does something and everything mean having something and having everything. Or, does it mean having nothing?

Something and everything? How do you measure something and everything. Does something mean having enough food, money or luxuries to lull your life? Does everything therefore mean having the means and power to get beyond something?

Paradoxically speaking, do you want to have nothing or have something or everything?
Easilly, anyone will either answer with the latter. But what does this bring us? Will it bring us peace? happiness? solitude? riches?

Answering it totally depends on our values and how we intend to use it. Having nothing may mean having no means, but being on the other hand in state of self-peace and happiness.

The morning after christmas

The Presidential Commission on Good Government: A critical review

I.

Introduction


The Philippines’ criminal justice system has five pillars namely, law enforcement; prosecution, courts, correctional system, and the community. The High Court in the case of People vs. Briones noted that, “Our commitment to the criminal justice system is not only to convict and punish violators of our laws. We are equally committed to the ideal that the process of detection, apprehension, conviction and incarceration of criminals should be accomplished with fairness, and without impinging on the dignity of the individual.”

The PCGG is a component of two pillars of the criminal justice system in our jurisdiction. It belongs to both the investigation and prosecution pillar. Twenty years has passed since this agency was created and arguments on its relevance and continuing existence have hounded it ever since.

II.

Statement of the Problem

The principal issues that this paper will attempt to resolve is whether or not the agency should really be allowed to continue its existence. Does this agency really serve its purpose in the ambit of our criminal justice system.


III.

Objectives

In resolving the issue presented, this term paper aims to achieve the following objectives:

1. To present the relevant laws and jurisprudence of the PCGG;
2. To discuss its achievements and accomplishments for the past twenty years; and
3. To determine the value of its continuing existence within the Philippines’ criminal justice system.


III.

Discussion of the subject

(A.) Relevant Laws

The PCGG is an offspring of a bloodless revolution. Created in 1986 by President Corazon Aquino through Executive Order no.1 s. 1986, its powers and authority include the following:

(a.) To conduct investigation as may be necessary in order to accomplish and carry out the purposes of this order.
(b) To sequester or place or cause to be placed under its control or possession any building or office wherein any ill-gotten wealth or properties may be found, and any records pertaining thereto, in order to prevent their destruction, concealment or disappearance which would frustrate or hamper the investigation or otherwise prevent the Commission from accomplishing its task.
(c) To provisionally take over in the public interest or to prevent its disposal or dissipation, business enterprises and properties taken over by the government of the Marcos Administration or by entities or persons close to former President Marcos, until the transactions leading to such acquisition by the latter can be disposed of by the appropriate authorities.
(d) To enjoin or restrain any actual or threatened commission of acts by any person or entity that may render moot and academic, or frustrate, or otherwise make ineffectual the efforts of the Commission to carry out its tasks under this order.
(e) To administer oaths, and issue subpoenas requiring the attendance and testimony of witnesses and/or the production of such books, papers, contracts, records, statement of accounts and other documents as may be material to the investigation conducted by the Commission.
(f) To hold any person in direct or indirect contempt and impose the appropriate penalties, following the same procedures and penalties provided in the Rules of Court.
(g) To seek and secure the assistance of any office, agency or instrumentality of the government.
(h) To promulgate such rules and regulations as may be necessary to carry out the purposes of this order.


Its powers were further expanded by Executive Order no. 2 s. 1986 with the authority to request and appeal to foreign governments to freeze and prevent the transfer, conveyance, encumbrance, concealment or liquidation of ill- gotten wealth or properties found within their respective jurisdictions pending the outcome or the appropriate proceedings in the Philippines, to wit:

(1.) Freeze all assets and properties in the Philippines in which former President Marcos and/or his wife, Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business associates, dummies, agents, or nominees have any interest or participation.
(2) Prohibit any person from transferring, conveying, encumbering or otherwise depleting or concealing such assets and properties or from assisting or taking part in their transfer, encumbrance, concealment, or dissipation under pain of such penalties as are prescribed by law.
(3) Require all persons in the Philippines holding such assets or properties, whether located in the Philippines or abroad, in their names as nominees, agents or trustees, to make full disclosure of the same to the Commission on Good Government within (30) days from publication of this Executive Order, or the substance thereof, in at least two (2) newspapers of general circulation in the Philippines.
(4) Prohibit former President Ferdinand Marcos and/or his wife, Imelda Romualdez Marcos, their close relatives, subordinates, business associates, dummies, agents, or nominees from transferring, conveying, encumbering, concealing or dissipating said assets or properties in the Philippines and abroad, pending the outcome of appropriate proceedings in the Philippines to determine whether any such assets or properties were acquired by them through or as a result of improper or illegal use of or the conversion of funds belonging to the Government of the Philippines or any of its branches, instrumentalities, enterprises, banks or financial institutions, or by taking undue advantage of their official position, authority, relationship, connection or influence to unjustly enrich themselves at the expense and to the grave damage and prejudice of the Filipino people and the Republic of the Philippines.

The Commission on Good Government is hereby authorized to request and appeal to foreign governments wherein any such assets or properties may be found to freeze them and otherwise prevent their transfer, conveyance, encumbrance, concealment or liquidation by former President Ferdinand E. Marcos and Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business associates, dummies, agents, or nominees, pending the outcome of appropriate proceedings in the Philippines to determine whether such assets or properties were acquired by such persons through improper or illegal use of funds belonging to the Government of the Philippines or any of its branches, instrumentalities, enterprises, banks, or financial institutions or by taking undue advantage of their office, authority, influence, connections or relationship

Its role as a catalyst to enhance the recovery of ill-gotten wealth was strengthened further by the issuance of Executive Order no. 13 on April 23, 1986 and Executive Order no. 14 and 14-A on May 7, 1986.


The PCGG’s powers and duties were further expanded in 2005 through the issuance of Executive Order no. 242 s. 2005 which transferred the powers, functions of the defunct ad hoc fact finding Committee on Behest Loans to the PCGG. The PCGG by virtue of Executive Order no. 643 series of 2007 is now under the supervision of the Department of Justice.


(b.) Jurisprudence on the PCGG

There are many cases decided by the Supreme Court involving the PCGG. For purposes of this report, I have identified only the following which resolved on the powers and duties exercised by the agency.

In the case of PCGG vs. Pena , the High Court thru its ponente Chief Justice Teehankee ruled that:

The main issue is whether regional trial courts have jurisdiction over the petitioner Presidential Commission on Good Government (hereinafter referred to as the Commission) and properties sequestered and placed in its custodia legis in the exercise of its powers under Executive Orders Nos. 1, 2 and 14, as amended, and whether said regional trial courts may interfere with and restrain or set aside the orders and actions of the Commission. The Court holds that regional trial courts do not have such jurisdiction over the Commission and accordingly grants the petition. To eliminate all doubts, the Court upholds the primacy of administrative jurisdiction as vested in the Commission and holds that jurisdiction over all sequestration cases of ill-gotten wealth, assets and properties under the past discredited regime fall within the exclusive and original jurisdiction of the Sandiganbayan, subject to review exclusively by this Court.

In the same case, Justice Feliciano in his concurring opinion wrote that:

It seems to me that PCGG can be regarded as exercising quasi-judicial functions only in a loose and non-technical sense. The PCGG is not a quasi-judicial body in the same sense that the National Labor Relations Commission (NLRC), the Securities and Exchange Commission (SEC) and the Office of the Insurance Commissioner (OIC) exercise quasi-judicial functions. The PCGG in issuing sequestration or take over orders is not properly regarded as determining private rights, even though subject to judicial review in a proper case. All that the PCGG is really doing in so issuing such orders is determining that there exist prima facie basis for filing the appropriate proceedings before the Sandiganbayan to seek recovery and reconveyance, etc., of the sequestered assets as probably belonging to the category of "ill-gotten wealth."

In the case of GSIS vs. Sandiganbayan , the Court ruled that with respect to the jurisdiction of the Sandiganbayan, a foreclosure order will not divest it of jurisdiction over sequestered properties and they remain under custodia legis subject to the resolution of the court as to whether or they constitute ill-gotten wealth.

In the case of Cojuangco vs. Roxas , the High Court thru Justice Gancayco ruled that:

Nothing is more settled than the ruling of this Court in BASECO VS. PCGG, that the PCGG cannot exercise acts of dominion over property sequestered. It may not vote sequestered shares of stock or elect the members of the board of directors of the corporation concerned —

a. PCGG May Not Exercise Acts of Ownership.

One thing is certain, and should be stated at the outset: the PCGG cannot exercise acts of dominion over property sequestered, frozen or provisionally taken over. As already earlier stressed with no little insistence, the act of sequestration, freezing or provisional takeover of property does not import or bring about a divestment of title over said property; does not make the PCGG the owner thereof. In relation to the property sequestered, frozen or provisionally taken over, the PCGG is a conservator, not an owner. Therefore, it can not perform acts of strict ownership; and this is specially true in the situations contemplated by the sequestration roles where, unlike cases of receivership, for example, no court exercises effective supervision or can upon due application and hearing, grant authority for the performance of acts of dominion.

"Equally evident is that the resort to the provisional remedies in question should entail the least possible interference with business operations or activities so that, in the event that the accusation of the business enterprise being 'ill-gotten' be not proven, it may be returned to its rightful owner as far as possible in the same condition as it was at the time of sequestration.

b. PCGG Has Only Powers of Administration

The PCGG may thus exercise only powers of administration over the property or business sequestered or provisionally taken over, much like a court-appointed receiver, such as to bring and defend actions in its own name; receive rents; collect debts due; pay outstanding debts; and generally do such other acts and things as may be necessary to fulfill its mission as conservator and administrator. In this context, It may in addition enjoin or restrain any actual or threatened commission of acts by any person or entity that may render moot and academic, or frustrate or otherwise make ineffectual its efforts to carry out its task; punish for direct or indirect contempt in accordance with the Rules of Court; and seek and secure the assistance of any office, agency or instrumentality of the government. In the case of sequestered businesses generally, (i.e., going concerns, businesses in current operation), as in the case of sequestered objects, its essential role, as already discussed, is that of conservator, caretaker, 'watchdog' or overseer, it is not that of manager, or innovator, much less an owner.

c. Powers over Business Enterprises Taken Over by Marcos or Entities or Persons Close to him; Limitations Thereon.

Now, in the special instance of a business enterprise shown by evidence to have been 'taken over by the government of the Marcos Administration or by entities or persons close to former President Marcos,' the PCGG is given power and authority, as already adverted to, to 'provisionally take (it) over in the public interest or to prevent . . (its) disposal or dissipation;' and since the term is obviously employed in reference to going concerns, or business enterprises in operation, something more than mere physical custody is connoted; the PCGG may in this case exercise some measure of control in the operation, running, or management of the business itself. But even in this special situation, the intrusion into management should be restricted to the minimum degree necessary to accomplish the legislative will, which is 'to prevent the disposal or dissipation' of the business enterprise. There should be no hasty, indiscriminate, unreasoned replacement or substitution of management officials, or change of policies, particularly in respect of viable establishments. In fact, such a replacement or substitution should be avoided if at all possible, and undertaken only when justified by demonstrably tenable grounds and in line with the stated objectives of the PCGG. And it goes without saying that where replacement of management officers may be called for, the greatest prudence, circumspection, care and attention should accompany that undertaking to the end that truly competent, experienced and honest managers may be recruited. There should be no role to be played in this area by rank amateurs, no matter how well meaning. The road to hell, it has been said, is paved with good intentions. The business is not to be experimented or played around with, not run into the ground, not driven to the bankruptcy, not fleeced, not ruined. Sight should never be lost sight of the ultimate objective of the whole exercise, which is to turn over the business to the Republic, once judicially established to be 'ill gotten.' Reason dictates that it is only under these conditions and circumstances that the supervision, administration and control of business enterprises provisionally taken over may legitimately be exercised.

d. Voting of Sequestered Stock; Conditions Therefor

So, too, it is within the parameters of these conditions and circumstances that the PCGG may properly exercise the prerogative to vote sequestered stock of corporations, granted to it by the President of the Philippines through a memorandum dated June 26, 1986. That memorandum authorizes the PCGG, 'pending the outcome of proceedings to determine the ownership of . . (sequestered) shares of stock,' 'to vote such shares of stock as it may have sequestered in corporations at all stockholders' meetings called for the election of directors, declaration of dividends, amendment of the Articles of Incorporation, etc.' The Memorandum should be construed in such a manner as to be consistent with, and not contradictory of the Executive Orders earlier promulgated on the same matter. There should be no exercise of the right to vote simply because the right exists, or because the stocks sequestered constitute the controlling or a substantial part of the corporate voting power. The stock is not to be voted to replace directors, or revise the articles or by-laws, or otherwise bring about substantial changes in policy, program or practice of the corporation except for demonstrably weighty and defensible grounds, and always in the context of the stated purposes of sequestration or provisional takeover, i.e., to prevent the dispersion or undue disposal of the corporate assets. Directors are not to be voted out simply because the power to do so exists. Substitution of directors is not to be done without reason or rhyme, should indeed be shunned if at all possible, and undertaken only when essential to prevent disappearance or wastage of corporate property, and always under such circumstances as to assure that the replacements are truly possessed of competence, experience and probity.

In the case at bar, there was adequate justification to vote the incumbent directors out of office and elect others in their stead because the evidence showed prima facie that the former were just tools of President Marcos and were no longer owners of any stock in the firm, if they ever were at all. This is why, in its Resolution of October 28, 1986; this Court declared that —

'Petitioner has failed to make out a case of grave abuse or excess of jurisdiction in respondents' calling and holding of a stockholders' meeting for the election of directors as authorized by the Memorandum of the President . . (to the PCGG) dated June 26, 1986, particularly, where as in this case, the government can, through its designated directors, properly exercise control and management over what appear to be properties and assets owned and belonging to the government itself and over which the persons who appear in this case on behalf of BASECO have failed to show any right or even any shareholding in said corporation.'

It must however be emphasized that the conduct of the PCGG nominees in the BASECO Board in the management of the company's affairs should henceforth be guided and governed by the norms herein laid down. They should never for a moment allow themselves to forget that they are conservators, not owners of the business; they are fiduciaries, trustees, of whom the highest degree of diligence and rectitude is, in the premises, required."

In COCOFED vs. PCGG , the High Court reiterated its ruling in n BASECO vs. PCGG, (150 SCRA 181, 182 (1987), whereby sequestration was defined as the process, which may be employed as a conservatory writ whenever the right of the property is involved, to preserve, pending litigation, specific property subject to conflicting claims of ownership or liens and privileges.

In Cojuangco vs. PCGG , the Court holds that a “just and fair administration of justice can be promoted if the PCGG would be prohibited from conducting the preliminary investigation of the complaints subject of this petition and the petition for intervention and that the records of the same should be forwarded to the Ombudsman, who as an independent constitutional officer has primary jurisdiction over cases of this nature, to conduct such preliminary investigation and take appropriate action. All violators of the law must be brought before the bar of justice. However, they must be afforded due process and equal protection of the law, whoever they may be.”

In the case of Chavez vs. Sandiganbayan involving the counter-claim suit filed by Senator Enrile against former Solicitor General Frank Chavez, the Court ruled that:

Under the circumstances of this case, we rule that the charges pressed by respondent Enrile for damages under Article 32 of the Civil Code arising from the filing of an alleged harassment suit with malice and evident bad faith do not constitute a compulsory counterclaim. To vindicate his rights, Senator Enrile has to file a separate and distinct civil action for damages against the Solicitor General.

In the case of Tiu Po v. Bautista, (103 SCRA 388 [1981]), we ruled that damages claimed to have been suffered as a consequence of an action filed against the petitioner must be pleaded in the same action as a compulsory counterclaim. We were referring, however, to a case filed by the private respondent against the petitioners or parties in the litigation. In the present case, the counterclaim was filed against the lawyer, not against the party plaintiff itself.
To allow a counterclaim against a lawyer who files a complaint for his clients, who is merely their representative in court and not a plaintiff or complainant in the case would lead to mischievous consequences.

A lawyer owes his client entire devotion to his genuine interest, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability. (See Agpalo, Legal Ethics [1980] p. 147 citing Javier v. Cornejo, 63 Phil. 293 [1936]; In re Tionko, 43 Phil. 191 [1922]; In re: Atty. C. T. Oliva, 103 Phil. 312 [1958]; Lualhati v. Albert, 57 Phil. 86 [1932]; Toguib v. Tomol, Jr., G.R. Adm. Case No. 554, Jan. 3, 1969; People v. Macellones, 49 SCRA 529 [1973]; Tan Kui v. Court of Appeals, 54 SCRA 199 [1973] A lawyer cannot properly attend to his duties towards his client if, in the same case, he is kept busy defending himself.

The problem is particularly perplexing for the Solicitor General. As counsel of the Republic, the Solicitor General has to appear in controversial and politically charged cases. It is not unusual for high officials of the Government to unwittingly use shortcuts in the zealous desire to expedite executive programs or reforms. The Solicitor General cannot look at these cases with indifferent neutrality. His perception of national interest and obedience to instructions from above may compel him to take a stance which to a respondent may appear too personal and biased. It is likewise unreasonable to require Government Prosecutors to defend themselves against counterclaims in the very same cases they are prosecuting.

As earlier stated, we do not suggest that a lawyer enjoys a special immunity from damage suits. However, when he acts in the name of a client, he should not be sued on a counterclaim in the very same case he has filed only as counsel and not as a party. Any claim for alleged damages or other causes of action should be filed in an entirely separate and distinct civil action.

In the case of Republic vs. Sandiganbayan , the High Court thru Justice Corona ruled that the PCGG was able to establish thru prima facie evidence that the assets and properties acquired by the Marcoses were manifestly and patently disproportionate to their aggregate salaries as public officials.

The High Court ruled as follows:

Section 2 of RA 1379 explicitly states that "whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired. . . ."

The elements which must concur for this prima facie presumption to apply are:

(1) the offender is a public officer or employee;

(2) the must have acquired a considerable amount of money or property during his incumbency; and

(3) said amount is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property.
It is undisputed that spouses Ferdinand and Imelda Marcos were former public officers. Hence, the first element is clearly extant.

The second element deals with the amount of money or property acquired by the public officer during his incumbency. The Marcos couple indubitably acquired and owned properties during their term of office. In fact, the five groups of Swiss accounts were admittedly owned by them. There is proof of the existence and ownership of these assets and properties and it suffices to comply with the second element.

The third requirement is met if it can be shown that such assets, money or property is manifestly out of proportion to the public officer’s salary and his other lawful income. It is the proof of this third element that is crucial in determining whether a prima facie presumption has been established in this case.

Petitioner Republic presented not only a schedule indicating the lawful income of the Marcos spouses during their incumbency but also evidence that they had huge deposits beyond such lawful income in Swiss banks under the names of five different foundations. We believe petitioner was able to establish the prima facie presumption that the assets and properties acquired by the Marcoses were manifestly and patently disproportionate to their aggregate salaries as public officials.

Otherwise stated, petitioner presented enough evidence to convince us that the Marcoses had dollar deposits amounting to US $356 million representing the balance of the Swiss accounts of the five foundations, an amount way, way beyond their aggregate legitimate income of only US$304,372.43 during their incumbency as government officials.

Considering, therefore, that the total amount of the Swiss deposits was considerably out of proportion to the known lawful income of the Marcoses, the presumption that said dollar deposits were unlawfully acquired was duly established. It was sufficient for the petition for forfeiture to state the approximate amount of money and property acquired by the respondents, and their total government salaries. Section 9 of the PCGG Rules and Regulations states:

Prima Facie Evidence. – Any accumulation of assets, properties, and other material possessions of those persons covered by Executive Orders No. 1 and No. 2, whose value is out of proportion to their known lawful income is prima facie deemed ill-gotten wealth.

Indeed, the burden of proof was on the respondents to dispute this presumption and show by clear and convincing evidence that the Swiss deposits were lawfully acquired and that they had other legitimate sources of income. A presumption is prima facie proof of the fact presumed and, unless the fact thus prima facie established by legal presumption is disproved, it must stand as proved









(c.) Accomplishments of the PCGG

PCGG has sequestered and prepared the privatization of more than P24-billion assets and pursuing litigation of some P180-billion worth more assets of Marcos family and cronies.
In its 21 years of existence, the Presidential Commission on Good Government (PCGG) has recovered around P60 billion in "net cash recoveries" from the heirs and cronies of the late strongman Ferdinand Marcos, the agency said in its accomplishment report for 2006.
The PCGG’s research department said in its report that the agency directly remitted P57 billion of its net cash recoveries to "the Bureau of Treasury for the account of the Agrarian Reform Fund (ARF) of the Comprehensive Agrarian Reform Program (CARP) of the government."
Moreover, the PCGG also stands to recover P213 billion more in cash and assets based on the value of the funds and properties involved in more than 500 cases still pending before the Sandiganbayan and the Supreme Court.
The pending cases include about 24 civil suits against the various heirs of Marcos and many of his close associates, such as Eduardo "Danding" Cojuangco Jr., Geronimo Velasco, Lucio Tan, Bienvenido Tantoco, Rodolfo Cuenca and Benjamin Romualdez.
In its report, the PCGG pointed out that the P60 billion it has recovered since 1986 proves that the commission is an efficient and effective organization.
"PCGG has attained a cost to recovery ratio of 1:52, which means that for every P1 million budget, PCGG was able to recover P52 million worth of cash and properties, or a recovery rate of 5,200 percent," the report said. "The agency, therefore, is economical, efficient, and effective in its operations."
The PCGG was earlier criticized for its poor performance in recovering the so-called ill-gotten wealth of the Marcoses and their associates.
PCGG officials, however, stressed that the agency can only do its best in following up the hundreds of cases pending before the court, but the speed by which these cases will be resolved rests solely on the judges hearing these cases.
Hereunder is a summary of the agency’s purported cash recoveries for the last twenty one years:
Pres. Aquino(4%)Pres. Ramos(20%)Pres. Estrada(1%)Pres. Arroyo(75%) Administration
Pres. Aquino 3.122B
Pres. Ramos 16.632B
Pres. Estrada 1.636B
Pres. Arroyo 61.528B



(D.) Calls for its abolition


With respect to the PCGG, there are now calls for its abolition in the light of its so-called failure to fulfill its mandate. Senator Pimentel has filed Senate Bill no. 292 calling for the abolition of the PCGG. Pimentel argues:

This legislative measure seeks to abolish the Presidential Commission on Good Government (PCGG) created under Executive Order No. 1 issued by former President Corazon C. Aquino on February 28, 1986.

Twenty (20) years after its creation, PCGG has not produced significant accomplishments that would justify its continued existence.

Under this bill, the powers and functions of investigations and prosecution of criminal and civil cases exercised by the PCGG shall be transferred to the Office of the Special Prosecutor, Ombudsman of the Philippines, while the management and the disposition of the assets and properties vested in the PCGG shall be transferred to, and shall be exercised by the Department of Finance through its Privatization Office. Furthermore, all sequestered real and personal assets and properties previously under the control and management of the PCGG, as well as all contracts, records and documents relating to the operation of the PCGG are transferred to the Privatization Office.


IV.

Conclusion and Recommendation

The continuing existence of the PCGG should not be argued merely on the cost recovery value as its defenders and opponents have advanced. There should be a framework developed to determine its true value in the criminal justice system.

If there is value though beyond the monetary consideration and accomplishment of the agency, it is how our jurisprudence has been enriched by the varied decisions of the Supreme Court on the powers, functions and limitations of the PCGG. But this is not to argue that, this alone is sufficient basis to justify its existence.

One critical link that is missing in the debate on its existence is the issue on whether this agency has indeed bought the perpetrators subject of its powers to the bar of justice. Clearly there is none. Perhaps this is one basic flaw of the agency that needs to be resolved.

For the last twenty one years, its focus is on asset recovery when clearly under its mandate under Executive Orders 1 and 2 in 1986, the agency is not just an asset recovery team. It should serve as a mechanism to administer of the ends of justice.

Conscience and the Law

CONSCIENCE AND THE LAW:
CONSCIENTIOUS OBJECTION IN PERSPECTIVE

-Guiller B. Asido-


“Conscience doth make cowards of us all”
William Shakespeare, Hamlet, Act III, Scene I

Introduction

This essay attempts to examine the interplay between the conscience and the law by focusing on conscientious objection. This will be a short discourse given the limitations of research materials available to this writer at this time. However, despite these limitations the writer shall endeavor not to sacrifice the substance of the discourse by presenting only concepts.

This essay is divided into three parts. The first part shall discuss the relationship between the law and conscience, with a segment devoted to defining the terms of conscience and morality. The second part of this essay shall focus on conscientious objection – its concept, development, and comparative analysis in other jurisdictions. The third part shall discuss the recognition and application of this legal doctrine in Philippines’ jurisprudence and in other jurisdictions.



I.
Law and Conscience: A Discussion

The Conscience and Morality

While there is no generally accepted definition of conscience, there are different approaches on how conscience should be defined to wit, religious, secular and the philosophical.

In the religious view of the “conscience,” reference must be made to the Divine Command Theory and the works of St. Thomas Aquinas . Under the Divine Command Theory, what is in accordance with God’s command is moral, and what is contrary to that command is immoral. This seemingly straightforward answer in turn raises a famous question in the history of Western theology and moral philosophy. It was first asked by the ancient-Greek philosopher Plato. In his tale Euthyphro the character Socrates (who had also been a real-life philosopher and former tutor of Plato) asks: Is something moral because the gods command it, or do the gods command it because it is moral? This is referred to as the ‘Euthyphro dilemma’, because either interpretation apparently raises serious theological problems.

The secular view of conscience, on the other hand refers to the psychological, humanitarian and authoritarian aspect.

Law and Conscience

In law, conscience is defined as the “moral sense; the faculty of judging the moral qualities of actions, or of discriminating between right and wrong; particularly applied to one’s perception and judgment of the moral qualities of his own conduct, but in a wider sense denoting a similar application of the standards of morality to the acts of others. The sense of right and wrong inherent in every person by virtue of his existence as a social entity; good conscience being a synonym of equity. In law, especially the moral rule which requires probity, justice, and honest dealing between man and man, as when we say that a bargain is “against conscience” or “unconscionable,” or that the price paid for property at a forced sale was so inadequate as to “shock the conscience.”

The right to conscience is a recognized human right under Article 18 of the Universal Declaration of Human Rights , which reads as:

Everyone has the right to freedom of thought, conscience and religion; this right includes the freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.



This was reiterated in Article 18 of the International Covenant on Civil and Political Rights which reads as:

Article 18
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

The right to freedom of thought, conscience and religion is an unqualified and non-derogable right under the International Covenant on Civil and Political Rights (ICCPR) This means that it applies in times of war or public emergency threatening the life of the nation as well as in peacetime. Nor is the manifestation of this right subject to limitations on the grounds of national security, unlike some of the other rights under the Covenant.

II.

Conscientious Objection: Concept and Development

Concept of Conscientious Objection

Conscientious objection is largely considered as an exercise of the right to dissent. It is a breach of law for the reason that the agent is morally prohibited to obey it, either because of its general character (absolute pacifists or conscriptors) or because it extends to certain cases and should not be covered by it.

The international definition of conscientious objection officially broadened in 1998, when the United Nations Office of the High Commissioner for Human Rights document called “Conscientious objection to military service, United Nations Commission on Human Rights resolution 1998/77” officially recognized that “persons [already] performing military service may develop conscientious objections.”

As a form of dissent, it may be distinguished from the two other categories of dissent or revolutionary and civil disobedience. Revolutionary acts and civil disobedience are cases of political action, they are essentially public auctions designed to have a political effect. Conscientious objection is not. It is essentially a private action by a person who wishes to avoid committing moral wrong by obeying a totally or partially morally bad law.

The definitions of conscientious objection and civil disobedience slightly differ among thinkers, Rawls sees the two concepts as exceptions to the prima facie duty to obey the law. He refers to civil disobedience as “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government”. Rawls states that conscientious objection might somewhat overlap a broad interpretation of civil disobedience; conscientious objection does not require appealing to the sense of justice of the majority, and does not seek common ground, but entails the premise that one’s personal conscience – not necessarily political – is at odds with the constitutional order. The two categories are therefore different, but not mutually exclusive.

Paul Anthony Duper points out that conscientious objection is a negative right. He writes:
An objection of conscience, where recognized under a legal system is a negative right. As with other legal jurisdictions, if recognized by the United Kingdom Parliament or by the English courts, it will relieve an individual from carrying out a certain act otherwise required by law, on the grounds that the person cannot perform such an action or grounds of conscientious objection. Grounds of conscientious objection are deemed to be a legitimate defence.

Professor Raz however in his essay “A Right to Dissent? II. Conscientious Objection,” writes that, there are drawbacks to conscientious objection. These drawbacks are:

(a.) Right is wide open to abuse. Entitlement for it depends on a person’s moral convictions. Such matters are hard to establish by independent evidence. The word of the person invoking the right is almost invariably the only direct evidence. The opportunities for abuse are countless.

(b.) Existence of right encourages self-doubt, self-deception and in general undeniable form of introspection;

(c.) Unless the right is applied in a simple declaration by the objector, the intrusion of a right to object involves sanctioning some degree of public intrusion into the private affairs of individuals.









Development of Conscientious Objection

The Peace Pledge Union, the oldest secular and pacifist organization in the United Kingdom provided a history on the development of conscientious objection:

Conscientious objection, however, has historical roots going back much further, and linked with the major religious movements which have left their mark on the history of Europe.

Countries with a Protestant tradition, with the exception of Switzerland, were the first to make provision for conscientious objectors. Exemptions from service were granted in Holland as early as 1549 and 1580. In 1757 a British law allowed exemption from compulsory militia service, and in the early 19th century Napoleon granted exemption to Protestant Anabaptists.

The Protestant countries of continental Northern Europe were the first to incorporate this right into their legislation. Norway did so in 1900, Denmark in 1917 (it was not involved in the First World War), Sweden in 1920, the Netherlands even wrote it into their constitution in 1922, and Finland enacted it in 1931.


Anglo-Saxon tradition stood further apart. The former militia system in Britain fell into disuse in the early 19th century, and the continental system of universal male conscription was not adopted. The former British colonies, such as the USA, Canada, Australia, New Zealand, likewise did not adopt universal conscription, which may be contrasted with the former Spanish colonies of Latin America, where conscription became, and largely remains, the norm.

In 1916 the British government felt constrained to introduce military conscription, because voluntary recruitment could not keep pace with the ever-increasing casualties of the First World War. It was acknowledged, however, to be an extremely controversial measure, and it was seen essential, as a compromise, to incorporate provision for conscientious objection from the beginning. The whole island of Ireland, then part of the United Kingdom, was exempted from conscription, for fear of a popular revolt. Conscription, with the right of objection, was reintroduced in Britain from 1939 to 1960. The issue in the UK has been whether conscription should exist at all, in contrast to continental Europe, where conscription has traditionally been taken for granted, and the issue has been controversy over conscientious objection.

The Catholic countries of Europe - apart from Ireland, where conscription has never been adopted - took half a century longer than their Protestant counterparts to recognize the right to object. France and Luxembourg recognized it in 1963, Belgium in 1964, Italy in 1972, and Spain in 1976, after the death of Franco (confirmed in the new constitution of 1978). Portugal included the right in its new 1976 constitution, following the "carnation revolution". The religiously "mixed" country of West Germany had the issue decided for it by the occupying Allies, who insisted, at British instigation, upon recognition of conscientious objection being incorporated into the post-war re-introduction of conscription in 1955.

The difference between countries with Protestant and Catholic traditions may be explained by the political consequences of different theological perceptions of the role of the faithful, and therefore of the individual citizen. Under Protestantism, Christians see themselves as having a direct relationship with God, to whom they are individually and personally responsible, under conscience, for their actions. In Catholicism, the Church seeks to be the mediator with God, and to take corporate responsibility, by papal decree, for moral issues.

Protestants, moreover, include a number of different churches, each with its own characteristics derived from the conscientious belief in a particular view of doctrine and organization. These include, especially, the historic 'peace' churches - the Anabaptists, the Mennonites, the Nazarenes, the Dukhobors, and the Quakers. Religious freedom and the freedom of conscience are the foundations which guarantee the equilibrium of these societies.

Catholicism, on the other hand, has imbued societies where it is the dominant religion with a more submissive attitude towards the hierarchy and dogma of the Church. Thus, Pope Pius XII proclaimed, in his 1956 Christmas message, that a Catholic citizen "cannot invoke his or her own conscience in order to refuse to render the services and perform the duties established by law". This did not, however, prevent certain young Catholics, such as the Belgian Jean van Lierde, from declaring themselves conscientious objectors. It may be that such a stand influenced the Second Vatican Council, in 1962-63, to pronounce that "it seems equitable that the laws should provide with humanity for those who, for reasons of conscience, refuse to use weapons, provided, however, that they agree to serve the human community in another way".

A special case in Europe is that of Greece, which delayed until 1997 before enacting a law allowing alternative civilian service for religious conscientious objectors, after many calls from the European Parliament and other international pressure. Even then, the law applies only to members of the Orthodox Church, which has never supported conscientious objectors - not surprisingly, in view of the close links between Greek nationalist fervour, the Greek state and the Greek Orthodox Church.

Conscientious objection arising from non-religious - humanist, socialist, and anarchist - motives developed in Europe from the early 20th century, particularly in the aftermath of the First World War. It found concrete expression in the establishment in 1921, at Bilthoven, Netherlands, of the War Resisters' International (WRI), with its founding Declaration, "War is a crime against humanity. We are therefore determined not to support any kind of war and to work for the abolition of all causes of war". The WRI (named in conscious imitation of the Socialist and Communist Internationals) soon began to collaborate with another international organisation, this time with Protestant motivation and ecumenist aims, the International Fellowship of Reconciliation (IFOR), founded in 1919, also at Bilthoven.

Two Belgian nonviolent anarchists, Lio Campion and Hem Day (pseudonym for Marcel Dieu) caused a great stir in 1933 when they were tried for refusing conscription, and contributed to increased commitment in humanist circles to recognition of conscientious objection. This was the background to a common parliamentary struggle by humanists and Christians when Jean van Lierde began his conscientious objection in 1949, which culminated in legalisation for concientious objection in 1964. The freethinker Louis Lecoin underwent a long hunger-strike to bring about recognition of conscientious objection in France in 1963.

In the former Soviet bloc of central and Eastern Europe conscientious objection was not allowed. The needs of a totalitarian militarist state were incompatible with recognition of freedom for citizens expressing opinions at variance with official doctrine, as was the case with conscientious objectors.

There had originally been a decree of the Council of People's Commissars in Soviet Russia, signed by Lenin on 4 January 1919, which established conscientious objection for those with a religious motivation, but under Stalin it ceased to be applied from 1929-30 onwards. Exceptionally, conscientious objection was recognized in East Germany by a decree of 7 September 1964, which allowed the performance of unarmed military service. The Protestant Church, often the focus of resistance to East German state oppression, was undoubtedly influential in this decision.

Since the dismantling of the Soviet bloc, Poland (1988), Hungary (1989), Lithuania (1990), Estonia (1991), Czech Republic and Slovakia (1992), Ukraine (1996), Bulgaria (1998) have begun to implement a right to conscientious objection.

To return to international pronouncements: the Human Rights Commission of the UN first formally recognized the right to conscientious objection on 10 March 1987, and appealed to states to implement it. In a later resolution of 22 April 1998 the Commission welcomed "the fact that some states accept claims of conscientious objection as valid without inquiry". This was in line with a European Parliament resolution of 7 February 1983, which acknowledged that "no court or commission can penetrate the conscience of an individual and that a declaration setting out the individual's motives must therefore suffice in the vast majority of cases to secure the status of conscientious objector". West Germany acted upon such a principle for a short period, but the only state in Europe now putting it into effect is Sweden, where there is a free choice for all young men between military service and civilian service.

The question of attempting to test the validity of a particular conscientious objection serves to highlight the fact that legal provision for objection by no means prevents hardships and injustice. Although Britain can claim some credit for refusing to bring in conscription without simultaneous provision for conscientious objection, almost a third of objectors in the First World War - 6000 out of 16000 - ended up in prison because of the way the system was administered. Injustices in other countries have included the running of tribunals by the military, with an obvious in-built bias, putting 'alternative service' schemes under the control of the military, and setting the period of alternative service up to twice as long as military service. At the other extreme, conscientious objectors in Germany (including the annexed Austria) were executed during the Second World War, and as late as 1949 two objectors were executed in Greece.

The Council of Europe Parliamentary Assembly returned to the issue of objection to military service in Resolution 1518 of 23 May 2001, recommending that the right of conscientious objection be formally incorporated into the European Convention on Human Rights. A particular factor influencing the Council was that five member states, Albania, Armenia Azerbaijan, Macedonia and Turkey had no provision at all for conscientious objection, and two others, Cyprus and Russia, had no effective provision.

III.

Application of Conscientious Objection

Conscientious Objection in other jurisdictions

Despite the fact that international institutions like the United Nations and the Council of Europe regard and promote conscientious objection as a human right, it still does not have legal basis in most countries. Among the roughly one hundred countries that have conscription, only thirty (30) countries have some legal provisions, 25 of them in Europe. In Europe, most countries with conscription more or less fulfill international guidelines on conscientious objection. In many countries outside of Europe, especially those where there are armed conflict, conscientious objection is punished severely.
United States Canada United Kingdom Germany Spain
The First Amendment to the American constitution, passed in 1791 simply states:
“Congress shall make no law respecting and establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In the United States, there are two main criteria for classification as a conscientious objector. First, the objector must be opposed to war in any form, Gillette v. United States, 401 U.S. 437. Second, the objection must be sincere, Witmer v. United States, 348 U.S. 375. That he must show that this opposition is based upon religious training and belief was no longer a criterion after cases broadened it to include non-religious moral belief, United States v. Seeger, 380 U.S. 163 and Welsh v. United States, 398 U.S. The Canadian Charter of Rights and Freedoms, Section 2 (a) provides that “Everyone has the following fundamental freedom (a) Freedom of conscience and religion.”

Mennonites in Canada were automatically exempt from any type of service during World War I by provisions of the Order in Council of 1873. During World War II, Canadian conscientious objectors were given the options of noncombatant military service, serving in the medical or dental corps under military control or working in parks and on roads under civilian supervision. The country recognized the right not to fight in the 18th century following problems with attempting to force Quakers into military service. The Militia Ballot Act of 1757 allowed Quakers to be excluded from military service.

Britain retained conscription, with rights of conscientious objection, as National Service until 1960. The use of only volunteer soldiers was hoped to remove the need to consider conscientious objectors. Ever since the First World War, however, there have been volunteer members of the armed forces who have developed a conscientious objection to continuing in service; a procedure was devised for them in the Second World War, and, with adaptations, it continues to this day. According to Article 4(3) of the German constitution (Grundgesetz): "No person shall be compelled against his conscience to render military service involving the use of arms. Details shall be regulated by a federal law."
According to Article 12a, every adult male is obligated to military service called Wehrdienst. The draftee can apply for an alternative service called "Zivildienst" (civilian service), if he declares conscience reasons. The civil service may not last longer than military service. This rule has been applied since October 1, 2004.
The Spanish Constitution of 1978 acknowledged conscientious objectors.]he Spanish parliament established a longer service (Prestación Social Sustitutoria) as an alternative to the Army.


Conscientious Objection in the Philippines

The application of conscientious objection in the Philippines has so far been limited to the realm of the freedom to believe and to act on one’s own belief. The realm of belief and creed is infinite and limitless, bounded only by one’s imagination and thought. So is the freedom of belief, including religious belief, limitless and without bounds, and poses no difficulty. The difficulty in interpretation sets in when belief is externalized into speech and action.

In the 1959 case of Gerona vs. Secretary of Education, the issue was raised on whether or not children of members of the Jehovah’s Witnesses may be expelled from school for their refusal to comply with an order of the Secretary of Education requiring compulsory flag ceremonies in public schools, the signing of the national anthem and reciting the patriotic pledge. The Supreme Court ruled that:

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect. Under the complete separation of church and state in our system of government, the flag is utterly devoid of any religious significance. Saluting the flag consequently does not involve any religious ceremony. The flag salute is no more a religious ceremony than the taking of an oath of office by a public official or by a candidate for admission to the bar.

In requiring school pupils to participate in the flag salute, the State thru the Secretary of Education was not imposing a religion or religious belief or a religious test on said students. It was merely enforcing a non-discriminatory school regulation applicable to all alike whether Christian, Moslem, Protestant or Jehovah's Witness. The State was merely carrying out the duty imposed upon it by the Constitution which charges it with supervision over and regulation of all educational institutions, to establish and maintain a complete and adequate system of public education, and see to it that all schools aim to develop among other things, civic conscience and teach the duties of citizenship.

The children of Jehovah Witnesses cannot be exempted from participation in the flag ceremony. They have no valid right to such exemption. Moreover, exemption to the requirement will disrupt school discipline and demoralize the rest of the school population which by far constitutes the great majority.

The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent authority.

This 1959 decision however was clarified and subsequently modified in the following cases decided by the Supreme Court.

In Victoriano vs. Elizalde Rope Workers' Union the Supreme Court upheld the exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not to join any labor group. ". . . It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some 'compelling state interests' intervenes." (Sherbert vs. Berner 374 U.S. Ct. 1790.)

In Ebranilag vs. Division of Superintendent of School , the High Court overruled the 1959 decision in Gerona and explained that:

Religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator (Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA 514, 530-531). "The right to religious profession and worship has a two-fold aspect, vis., freedom to believe and freedom to act on one's belief. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare" (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).

The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German vs. Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent." Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified. . . . After all, what the petitioners seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, science, Philippine history and culture but also receive training for a vocation or profession and be taught the virtues of "patriotism, respect for human rights, appreciation for national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court had feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities. As Mr. Justice Jackson remarked in West Virginia vs. Barneta, 319 U.S. 624 (1943): ". . . To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. . . . When they [diversity] are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." "Furthermore, let it be noted that coerced unity and loyalty even to the country, . . . — assuming that such unity and loyalty can be attained through coercion — is not a goal that is constitutionally obtainable at the expense of religious liberty. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.).






Concluding Statement

The relationship of conscience with the law is not a simple pedadogy for scholars. For freedom of conscience is the bedrock of other fundamental rights, e.g. speech, expression, and religion. While it may be said to be individual in character, and the State may exert its authority to limit the exercise or manifestation of the freedom of conscience for public interest, still it cannot restrict the conscience itself.

A US Supreme Court Justice (Benjamin Cardozo in Palko v. Connecticut (1937) wrote that:

"Freedom of thought... is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations a pervasive recognition of this truth can be traced in our history, political and legal."

Chief Justice Dickson of the Supreme Court of Canada echoed the same when he wrote:
It should also be noted, however, that an emphasis on individual conscience and individual judgement also lies at the heart of our democratic political tradition. The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self-government. It is because of the centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity and to a free and democratic political system that American jurisprudence has emphasized the primacy or "firstness" of the First Amendment .

Images of Saturday

Its been more than a year I believe that I spent time in a beach. Last saturday, after a week of stress in work I decided to leave everything behind and go with my family to Bataan.

There were no crowds in the beach where we went. No frills, just sand and waves.

Dinner at the beach al fresco was one of the best. It made me lose track of the time and made me think of a lot of options on how best to move forward with work and family.

sunday morning in taal lake

Philosopher-King

Political Philosophy proper began with the Greeks. It may be true that that all succeeding political philosophy is a footnote to and commentary on Plato. [1]

This view could perhaps to due to the fact that, as observed by Professor Paul Carteledge of the University of Cambridge:

Much of our political terminology is Greek in etymology: aristocracy, democracy, monarchy, oligarchy, plutocracy, tyranny, to take just the obvious examples, besides politics itself and its derivatives…It is the ancient Greeks, though, who more typically function as our “ancestors in the political sphere, ideologically, mythologically and symbolically.”[2]

No political writer or scholar can ignore the Republic. It is a book not only on politics but also on psychology, morality, and education.
In his History of Western Philosophy (1945), Bertrand Russell sees three parts in Plato's Republic: [3]
1. Book I-V: the Utopia part, portraying the ideal community, starting from an attempt to define justice;
2. Book VI-VII: since philosophers are seen as the ideal rulers of such community, this part of the text concentrates on defining what a philosopher is;
3. Book VIII-X: discusses several practical forms of government, their pros and cons.
The Republic is also a critique of the accepted Athenian idea of all citizens participating and ruling in politics. To Plato, ruling was a distinct craft, to be exercised by trained rulers. The Republic was an ideal regime where there are distinctions drawn between the citizens of the state, not on the basis of their possession of material wealthy, but on what part of the soul was dominant in their character.

Professor Michael Curtis wrote:

“The three elements of the soul- apetitite, courage and reason- were related to class and to function in the state. If appetite or the satisfaction of physical desires dominated, the individual would be in the laboring class, if it was spirit or courage, he would be a warrior, if it was reason, or the faculty of possessing true knowledge, he would be a ruler. Constitutions were thus related to the character of a citizen body. The good state, like the good man, possessed the characteristics of temperance, courage, wisdom and justice.”[4]


The Philosopher as king in Plato’s Republic

The introduction of the idea of philosopher rulers is the greatest of all the revolutionary moments Plato has prepared for readers of the Republic[5], wrote University of Cambridge Professor Malcolm Schofield.

Plato wrote:

Until philosophers are kings, or the kings and princes of this world have the spirit and power of philosophy, and political greatness and wisdom meet in one, and those commoner natures who pursue either to the exclusion of the other are compelled to stand aside, cities will never have rest from their evils, --nor the human race, as I believe, --and then only will this our State have a possibility of life and behold the light of day. Such was the thought, my dear Glaucon, which I would fain have uttered if it had not seemed too extravagant; for to be convinced that in no other State can there be happiness private or public is indeed a hard thing.[6]


And who are the philosophers, Plato defined them as:

Very true, he said. Whereas he who has a taste for every sort of knowledge and who is curious to learn and is never satisfied, may be justly termed a philosopher? Am I not right?
Glaucon said: If curiosity makes a philosopher, you will find many a strange being will have a title to the name. All the lovers of sights have a delight in learning, and must therefore be included. Musical amateurs, too, are a folk strangely out of place among philosophers, for they are the last persons in the world who would come to anything like a philosophical discussion, if they could help, while they run about at the Dionysiac festivals as if they had let out their ears to hear every chorus; whether the performance is in town or country --that makes no difference --they are there. Now are we to maintain that all these and any, who have similar tastes, as well as the professors of quite minor arts, are philosophers?
Certainly not, I replied; they are only an imitation. He said: Who then are the true philosophers? Those, I said, who are lovers of the vision of truth.[7]

To Plato, philosophers are never misfits or useless to the cities they belong. To illustrate this, Plato wrote a parable and said:

The sailors are quarrelling with one another about the steering --every one is of opinion that he has a right to steer, though he has never learned the art of navigation and cannot tell who taught him or when he learned, and will further assert that it cannot be taught, and they are ready to cut in pieces any one who says the contrary. They throng about the captain, begging and praying him to commit the helm to them; and if at any time they do not prevail, but others are preferred to them, they kill the others or throw them overboard, and having first chained up the noble captain's senses with drink or some narcotic drug, they mutiny and take possession of the ship and make free with the stores; thus, eating and drinking, they proceed on their voyage in such a manner as might be expected of them. Him who is their partisan and cleverly aids them in their plot for getting the ship out of the captain's hands into their own whether by force or persuasion, they compliment with the name of sailor, pilot, able seaman, and abuse the other sort of man, whom they call a good-for-nothing; but that the true pilot must pay attention to the year and seasons and sky and stars and winds, and whatever else belongs to his art, if he intends to be really qualified for the command of a ship, and that he must and will be the steerer, whether other people like or not-the possibility of this union of authority with the steerer's art has never seriously entered into their thoughts or been made part of their calling. Now in vessels which are in a state of mutiny and by sailors who are mutineers, how will the true pilot be regarded? Will he not be called by them a prater, a star-gazer, a good-for-nothing?

And as to the query why philosophers are uniquely suitable to establish and then govern the ideal or near ideal city, Plato identified the following qualities of a philosopher-king:

1. Their passionate desire for truth and its workings on and in his soul;

2. While most people look below to human affairs and become filled with envy and hatred, Philosophers study and know the good. Knowledge of the good implies being good.

3. Philosophers shape the lives of others when they are placed in positions of rule.


Critique on the Philosopher as king


Much of the critique on Plato focuses on the analysis that the state regime that he philosophizes can be considered as totalitarian in some extent.

The Standford University Encyclopedia justifies this as follows:
Some of the most heated discussions of the politics of Plato's Republic have surrounded the charge of totalitarianism famously advanced by Karl Popper (in The Open Society and its Enemies). Like the other "isms" we have been considering, totalitarianism applies to the Republic only conditionally, depending on the definition of ‘totalitarianism’ offered.
First, we might define as totalitarian those regimes in which the political power is concentrated in one bloc, and the ruled have no alternative. On this definition, the ideal city of Plato's Republic is surely totalitarian. Socrates carefully argues that the ruled in his "Kallipolis" (as the ideal city is sometimes called) endorse the ruling party. When he argues that those without knowledge will concede that only the philosophers have knowledge (476d-480a), he is in effect demonstrating his confidence that the non-philosophers in Kallipolis will recognize the appropriateness of rule by philosophers. And if he is correct that in ideally ruled circumstances, even the producers who locate their good in the satisfaction of necessary appetitive attitudes will have optimally satisfied psychological attitudes, then he is justified in thinking that the ruled will find Kallipolis to be ideally ruled. So by showing concern for the consent of the governed, Socrates is painting a totalitarian state nicer than some, but he is still, by the first definition, painting a totalitarian state.
Second, we might define as totalitarian those regimes that exercise propagandistic control over the values and interests of the ruled. Again, by this definition, the ideal city of Plato's Republic will count as totalitarian. There is no doubt that the censored education in Kallipolis represent totalitarian concerns, as does Kallipolis' use of a "noble lie" to convince citizens' of their unequal standing and deep tie to the city (414b-415d). Before we assess this totalitarianism, however, we might want to evaluate its aims. Does the state or the ruling class have its own distinctive interests that are being served prior to and independent of the interests of the ruled? Or is the propaganda in the service of the interests of the ruled?
These questions bring us to the heart of the traditional dispute about totalitarianism in Plato's Republic. On one extreme view, Plato conceives of the city as a whole as an organic unity with its own interests, and he refuses to recognize the interests of individual citizens apart from that organic unity. The propaganda forces the citizens to serve the city. But this can hardly be right, as the Republic is supposed to provide a picture not just of a happy city but also of a happy individual person. Plato must have a conception of an individual's good that is independent of the city's good.
On the opposite extreme, Plato conceives of the city's good as nothing more than the aggregate good of all the citizens. On this view, citizens need to contribute to the city's happiness only because they need to contribute to the happiness of other citizens if they are to achieve their own maximal happiness. Propaganda is required only because the weakest citizens will not do what is in their interests on their own: the totalitarianism is paternalistic. Yet this view, too, seems at odds with much of what the Republic is trying to do. When Socrates says that the happiest city is a maximally unified city (462ab), or when he insists that all the citizens need to be bound together (519e-520a), he seems to be invoking a conception of the city's good that is not reducible to the aggregate good of the citizens.
So a mixed interpretation might seem to be called for. We can suppose that the good of the city and the good of the individual are independently specifiable, and that the citizens' own maximal good coincides with the maximal good of the city. Since Plato believes that this coincidence is realized only through propagandistic means in the ideal city, then the propaganda is paternalistically targeted at the citizens' own good but not exclusively at the citizens' own good. On this view, if the citizens do not see themselves as parts of the city serving the city, neither the city nor they will be maximally happy.

Such criticisms of Plato are however not the generally accepted norm on how the Republic should be read and analyzed. Some of Plato’s proposals have led theorists like Leo Strauss and Allan Bloom to ask readers to consider the possibility that Socrates was creating not a blueprint for a real city, but a learning exercise for the young men in the dialogue. There are many points in the construction of the "Just-City-in-Speech" that seem contradictory, which raise the possibility Socrates is employing irony to make the men in the dialogue question for themselves the ultimate value of the proposals. In turn, Plato has immortalized this ‘learning exercise’ in The Republic.

Theorists Leo Strauss even cited Cicero's opinion that the Republic's true nature was to bring to light the nature of political things, and not to create a real city.[8]
Relevance of Plato’s Philosopher-King now

Given the framework of Plato for a regime ruled by philosophers, how should we approach this now in the context of our present political systems?

The relevance of Plato’s Republic and his philosophy for a philosopher-ruler to govern lies in the fact that, it should be seen as a model for thinking and not as a blueprint or template design for the ascension into power of a particular or privileged group only.

Plato himself pointed this out in his conclusion expressed on the last page of Book X that “we should practice it with understanding in every way we can.”

As a model for thinking however it should be emphasized that the proposals advanced by Plato contain nothing that could not strictly be achieved.


[1] Michael Curtis, “The Great Political Theories:From the Greeks to the Enlightenment,” Harper Classics, 2008, page 23.
[2] Paul Carteledge, “Greek Political Thought: The historical context,” The Cambridge History of Greek and Roman Political Thought, University of Cambridge, 2000, page 11
[3] Russell, Bertrand, History of Western Philosophy, begin of Book I, part 2, ch. 14
[4] Curtis, ibid, page 27
[5] Malcolm Schofield, “Approaching the Republic,” The Cambridge History of Greek and Roman Political Thought, University of Cambridge, 2000, p. 224
[6] Plato, “Republic,” Book V, 473
[7] Plato, Book V
[8] History of Political Philosophy, co-editor with Joseph Cropsey, 3rd. ed., Chicago: University of Chicago Press, 1987,p.68

Independence Day 2008

Independence Day 2008 in Manila was marked with austere measures. The official reason given - the economic crisis demands that we observe the holiday with austere measures. I strongly disagree with this position.

It is a mockery of the sacrifices that our patriots have made in defense of freedom and independence. This action is consistent though with a "history absent minded" culture that we Filipinos have.

Pity our heroes....

For Joan

On 4 May, Joan and I will be celebrating our 14th wedding anniversary. It has been quite a journey. And I have never regretted any single day that I have spent with her.

Joan and I were classmates in law school. We started out as friends and had respective other relationships as well before we found each other. It was not a fairytale romance though and I have no pretensions that it was to be that way.

My only regret is that, how I wished I met her earlier in my life. We have been thru the best and worst of times. There were times before that we found ourselves without any cash on hand and wondered how will we cope with the bills. We have argued as well on almost every issue that confronted us and yet we remained steadfast in our love for each other.

Throughout the 14 years, we have learned to support and respect each other. There were times that I have become unreasonable and cranky, due to the stress of work. And yet she will always find a way to bring me back to reality and try to make me see that there is more to life than the four corners of my office.

Joan and I are quite opposites. She is more out going than me. And definitely she has more friends than me. She understands math and I don't. She can blend into any crowd, while I tend to be an introvert sometimes.

Our kids simply adore her and I think they believe her more than me (?) as I tend to be tough on them as well at any hint of noise or childishness.

I look forward to celebrating not only fourteen (14) more years with Joan but more than a lifetime, as I always say to her. She holds forever the keys to my heart.

I was looking at some old letters I wrote to Joan and I saw a letter that I wrote to her in 1999. In that letter, I quoted Bob Garon. Mr. Garon wrote : " The most dangerous attitute, lovers can have is to believe that, we have made it to the top of the mountain, now the rest will be easy. The truth is that there are many more mountains to climb. many of them far more difficult than anything the couple has experienced up to now."

Jo, I look forward to our continuing journey. With you at my side, I shall not waiver nor fall. You are my strength, my life and soul. Happy anniversary !!

Auden's Poem

As I Walked Out One Evening

by W. H. Auden

As I walked out one evening,
Walking down Bristol Street,
The crowds upon the pavement
Were fields of harvest wheat.
And down by the brimming river
I heard a lover sing
Under an arch of the railway:
'Love has no ending.
'I'll love you, dear, I'll love you
Till China and Africa meet,
And the river jumps over the mountain
And the salmon sing in the street,
'I'll love you till the ocean
Is folded and hung up to dry
And the seven stars go squawking
Like geese about the sky.
'The years shall run like rabbits,
For in my arms I hold
The Flower of the Ages,
And the first love of the world.'
But all the clocks in the city
Began to whirr and chime:
'O let not Time deceive you,
You cannot conquer Time.
'In the burrows of the Nightmare
Where Justice naked is,
Time watches from the shadow
And coughs when you would kiss.
'In headaches and in worry
Vaguely life leaks away,
And Time will have his fancy
To-morrow or to-day.
'Into many a green valley
Drifts the appalling snow;
Time breaks the threaded dances
And the diver's brilliant bow.
'O plunge your hands in water,
Plunge them in up to the wrist;
Stare, stare in the basin
And wonder what you've missed.
'The glacier knocks in the cupboard,
The desert sighs in the bed,
And the crack in the tea-cup opens
A lane to the land of the dead.
'Where the beggars raffle the banknotes
And the Giant is enchanting to Jack,
And the Lily-white Boy is a Roarer,
And Jill goes down on her back.
'O look, look in the mirror,
O look in your distress:
Life remains a blessing
Although you cannot bless.
'O stand, stand at the window
As the tears scald and start;
You shall love your crooked neighbour
With your crooked heart.'
It was late, late in the evening,
The lovers they were gone;
The clocks had ceased their chiming,
And the deep river ran on.

Contextual Determination of the State of Democracy in the Philippines

“Many forms of Government have been tried and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.”

- Winston S. Churchill-

I.

INTRODUCTION

Yale University Scholar Robert Dahl identified six (6) major institutional ingredients that would give rise to what he calls “full democracy[1],” to wit:

· Elected officials – Control over government decisions about policy is constitutionally vested in officials elected by citizens.
· Thus, modern large scale- democratic governments are representative.
· Free, fair and frequent elections – Elected officials are chosen in frequent and fairly conducted elections in which coercion is comparatively uncommon.
· Freedom of expression – Citizens have a right to express themselves without danger of severe punishment on political matters broadly defined, including criticism of officials, the government, the regime, the socioeconomic order, and the prevailing idealogy.
· Access to alternative sources of information – Citizens have a right to seek out alternative and independent sources of information from other citizens, experts, newspapers, magazines, books, telecommunications, and the like. Moreover, alternative sources of information actually exist that are not under the control of the government or any other single political group attempting to influence public political beliefs and attitudes, and these alternative sources are effectively protected by law.
· Associate autonomy – To achieve their various rights, including those required for the effective operation of democratic political institutions, citizens also have a right to form relatively independent associations or organizations, including independent political parties and interest groups.
· Inclusive citizenship – These include the right to vote in the election of officials in free and fairer elections; to run for elective office; to free expression; to form and participate in independent political organizations; to have access to independent sources of information; and the rights to other liberties and opportunities that may be necessary to the effective operation of the political institutions of large scale democracy.

These are what Dahl also calls, the “minimum requirements for a democratic country.

Aside from these minimum requirement, Wood also identifies other essential conditions favorable to the development of democracy. These essential conditions, Wood writes are those without which democracy cannot survive. These essential conditions include the following:

· Civilian control of the military and police
· Democratic political culture
· Absence of intervention by foreign powers

II.

THE PHILIPPINE CONSTITUTION ON DEMOCRACY

Are constitutions important to a country’s democracy?

Dahl believes that constitutions matter to a country’s democracy in many ways. A constitution he says can provide the following:

· Stability to political institutions
· Protect fundamental rights
· Maintain neutrality among citizens
· Hold political leaders accountable for their decisions
· Fair representation
· Informed consensus on laws and policies
· Effective Government
· Competent decisions
· Transparency and accountability
· Resiliency
· Legitimacy

Does the Philippine constitution provide these? Are the six (6) so-called institutional ingredients of and three (3) essential conditions of democracy present in the Philippine constitution?


a.) A historical framework of the Philippine Constitution.

The Philippine Constitution has been rewritten seven times starting from the Biak-na-Bato Constitution to the 1987 Constitution. The political evolution and every significant event in the Philippine history resulted a change in the constitution.

The first Philippine constitution is the Biyak-na-Bato Constitution that was enacted in 1897. It outlined the revolutionary objectives of independence from Spain.

Two years later, the president decreed the creation of the Malolos Constitution. A new central government was set up with executive, legislative and judiciary branches. It governed the First Philippine Republic proclaimed in the Barasoain Church in the same year.

Due to the turbulent times of the early governments, the first two constitution were not fully enforced. What is considered the first Philippine Constitution to be fully enforced was drafted by the virtue of the Tydings-McDuffie Law in 1934 during the Commonwealth Period. It was enforced from 1935 - 1943.

During World War II, a short lived constitution (The 1943 Constitution) was sponsored by the Japanese invaders within their own program of Japanization.When the political independence was granted by the United States in 1946, the constitution was revised and was enforced from 1946 to 1973.

Eventually considered inadequate against the changing needs of Filipinos, the 1935 Constitution was replaced with a new one ratified in 1973. The 1973 Constitution was approved for ratification two months after the imposition of the martial law on November 29, 1972.
When Ferdinand E. Marcos was ousted in 1986, the new government led by Corazon C. Aquino promulgated what is now know as the Freedom Constitution. This 1987 Constitution restored the presidential form of government.

b.) Democracy in the Philippine Constitution

For us to resolve on whether or not the Philippine Constitution can be classified as democratic or not, the framework provided by Dahl on the essential ingredients of democracy and the essential conditions of democracy are to be used in this paper.

The provisions in the 1987 Constitution where we can say the essential ingredients and conditions of democracy can be found are:

ESSENTIAL INGREDIENTS OF DEMOCRACY
RELEVANT PROVISIONS OF THE 1987 CONSTITUTION

Elected Officials

Article V (Suffrage)

Article VI, section 2 (Election of Senators)

Article VI, section 3 (Qualifications of Senator)

Article VI, section 4 (Term of office of Senators)

Article VI, section 5 (Election of Members, House of Representatives)

Article VI, section 5 (2) Party list Representatives

Article VI, section 6 (Qualifications of Members of House of Representatives)

Article VI, section 7 (Term of office of Members of the House of Representatives)

Article VI, section 6 (Regular election of Senators and Members of House of Representatives)

Article VII, sections 2,3, 4, 5 (Executive Department – Qualifications of President and Vice-President; Election; Oath)

Article X, section 8 (Term of office of Local Government Officials)


Free, fair and frequent elections

Article V (Suffrage)

Article VI, section 4 (Term of Office of Senators)

Article VI, section 7 (Term of office of Members of the House of Representatives)

Article VII, section 4 (Term of office of the President and Vice- President)

Article X, section 8 (Term of office of Local Government Officials)

Article IX, C (Commission on Elections)


Freedom of Expression

Article II, section 28 (State Policy adopting full public disclosure on all transactions involving public interest)

Article III, Section 4 (Freedom of Speech, of expression, or the right of the people peaceably assemble to petition the government for redress of grievances)

Article III, Section 7 (Right to information on matters of public concern)

Article III, Section 18 (1) – No person shall be detained solely by reason of his political beliefs and aspirations.

Alternative sources of information
Article II, section 28 (State Policy adopting full public disclosure on all transactions involving public interest)

Article III, Section 4 (Freedom of Speech, of expression, or the right of the people peaceably assemble to petition the government for redress of grievances)

Article III, Section 18 (1) – No person shall be detained solely by reason of his political beliefs and aspirations.


Associational autonomy

Article II, section 23 (State shall encourage non-governmental, community based, or sectoral organizations that promote the welfare of the nation.)

Article III, section 8 (Right to form unions, associations or societies for purposes not contrary to law)

Inclusive citizenship

Article III, section 26 (Equal access to opportunities for public service)

Article II, section 23 (State shall encourage non-governmental, community based, or sectoral organizations that promote the welfare of the nation.)

Article II, section 28 (State Policy adopting full public disclosure on all transactions involving public interest)

Article III, Section 4 (Freedom of Speech, of expression, or the right of the people peaceably assemble to petition the government for redress of grievances)

Article III, Section 7 (Right to information on matters of public concern)

Article III, section 8 (Right to form unions, associations or societies for purposes not contrary to law)

Article VI, section 2 (Election of Senators)

Article VI, section 3 (Qualifications of Senator)

Article VI, section 7 (Term of office of Members of the House of Representatives)

Article VII, section 4 (Term of office of the President and Vice- President)

Article X, section 8 (Term of office of Local Government Officials)

Article IX, C (Commission on Elections)



ESSENTIAL CONDITIONS OF DEMOCRACY
RELEVANT PROVISIONS OF THE 1987CONSTITUTION

Civilian control of the military and police

Article II, section 3 (Civilian authority over military)

Article VII, section 18 (Emergency powers of the President)

Democratic political culture

Article II, section 1 (The Philippines as a democratic and a republican state.)

Article IV (The Bill of Rights)

Article V (Suffrage)

Article VI (Legislative Department)

Article VII (Executive Department)

Article VIII (Judiciary)

Absence of Intervention by foreign powers

Article II, section 7 (State Policy to pursue an independent foreign policy)

Article II, section 8 (Policy of freedom from nuclear weapons)

Article II, section 19 (Develop a self-reliant and independent national economy effectively controlled by Filipinos)


III.

A CRITICAL DETERMINATION OF THE STATE OF DEMOCRACY IN THE PHILIPPINES UNDER THE ARROYO GOVERNMENT BASED ON THE 1987 CONSTITUTION

While the Philippines prides itself as a “democratic and republican state,” the question presented is whether the present government under Gloria Macapagal Arroyo honors the institutions and conditions necessary for democracy to thrive.

In terms of the essential ingredients of democracy, we note the following points:

The institutional structure of Philippine democracy is solid on the outside. It is however by looking more deeply that the serious limitations begin to appear.[2]

In terms however of the institutional prerequisite on freedom of expression, alternative sources of information, associational autonomy, the Arroyo administration is a dismal failure. During the past three years in particular, we have seen the issuance of various presidential edicts, such as:

a.) Policy on calibrated preemptive response
b.) Executive Order 464
c.) Declaration of State of Emergency

These presidential edicts have all been struck down by the Supreme Court, for violating constitutional precepts on freedom of expression and executive privilige. Offhand though, such presidential edicts show the tenacity of the present administration to remain in power at all cost under the guise of protecting democratic institutions.

Other issues that affect the institutional prerequisites are the on-going extrajudicial killings and enforced disappearances of human rights activists. These human rights violations send a chilling effect to those opposing the Arroyo administration.

Wood further believes that, the essential conditions for democracy are not at all favorable in the Philippines.

This statement of Wood is affirmed by the following facts:

a.) Interference of the Military in politics
b.) Militarization of the civilian bureaucracy through the appointment of retired officials in the bureaucracy
c.) Restrictive political culture, where people power is a norm rather than an exception.
d.) Over-centralization of political power
e.) Execution of various bilateral defense and trade agreements (e.g., Visiting Forces Agreement with US and the Japanese- Philippines Economic Agreement) which restricts the exercise of sovereignty by the Philippines.


IV.

FINAL REMARKS

In the kingdom of the blind, the one-eyed man is king. The Philippines now finds itself in a cross road, where democratic institutions are severely being tested, information and participation in the crafting of policies being limited to a cabal of political bureaucrats. Under these circumstances where Filipinos are being lead blindly by a one-eyed queen, is the Philippines therefore still a democratic state?
The state of Philippine democracy has once more become an international issue. In its recent annual report on the global state of human rights and democratic freedoms, the U.S. think tank Freedom House has downgraded the Philippines from a “free” to a “partly free” country. The institute said that the negative status change was “based on credible allegations of massive electoral fraud, corruption, and the government’s intimidation of elements in the political opposition.”[3]

[1] Alan Wood, “Asian Democracy in World History,” page 11. Also cited in Robert Dahl’s book, “ On Democracy,” page 84.
[2] Alan Wood, “Asian Democracy in World History”
[3] Ronald Meinardus, The Weakening of Philippine Democracy, The Korea Times, December 5, 2005